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42 The Dalits of Nepal and a New Constitution Members must read about constitutions, and about the issues. They must take an active interest in the opportunities that will certainly be presented to learn about the work of the Constituent Assembly. They must learn to speak in public. They must familiarise themselves with the material provided by various bodies that are relevant to their concerns. They will have a particular responsibility to learn about the issues that relate to the subject committee on which they serve. In relation to the issues on which they and their community have a particular interest they must understand not just what the proposal are and what the arguments in favour are, but they must learn what the arguments against are going to be. And they must be able to decide whether those arguments against have any validity – and if so be prepared to think again, and if not be able to counter those arguments. And they must be prepared to listen – because those who do not listen will never understand what is going on, and what arguments are being made on the other side. A particularly difficult issue for members will be the possible tension between their responsibility to party and their responsibility to their own community and other causes. It would very often be best to try to persuade their own party that a particular provision that the Dalit community wants (or the Janajatis etc., depending on their own group), or that a particular region wants, is something the party should adopt as a policy. But what happens if the party simply refuses to accept this position? There is a risk that a party might try to discipline a member who did not toe the party line. And a person who is dismissed from their party would, it seems from the Interim Constitution, lose his or her seat. But hopefully the parties will realise that every member has more than one identity. Members will not just be party members: they will be men or women, Dalits, Janajatis, persons with disability, Muslims, Buddhists, environmentalists, professionals, farmers etc. and they will all have views on what the interests of these various communities require. Dalit or Janajati or women members etc will need to work not just within their parties but in alliance across party lines. Parties should accept that this may be in the interest of the nation as a whole, and not treat it as simply disloyalty. And – parties will not be able to dismiss all Dalits, Janajatis, women and Madhesis if they choose to caucus across party lines! Can a Constitution be “self-executing”? Anyone who reads the 1990 and Interim Constitutions thoughtfully may conclude that constitutions are ineffective weapons – for there are in fact a good number of fine sounding provisions about rights, including for Dalits, even in the 1990 Constitution (though it does not use the word “Dalit” specifically (see Appendix 3). If the 1990 Constitution had been fully implemented, would the condition of Dalits have still been so bad? Even when there is the possibility of going to court, the results may be disappointing. As commented in Appendix 4, implementation of Supreme Court decisions about human rights is weak. There is especially no effective enforcement mechanism for orders to pass laws. Indeed it is not easy to devise an effective binding mechanism. The real power courts have to enforce their orders on constitutional matters is to hold individual liable for contempt of court – for which it is possible to send a person to prison. In order to do, this some person must have been ordered to carry out something which they had the capacity to do and failed to do. When “the government” is ordered to pass law, who has to act? What exactly do they have to do? How can government be ordered to make a law when that is the responsibility of the legislature? Other problems about relying on courts is that they only have the capacity to deal with a small number of cases. And they are not quick. So legal action has its values, but is no substitute for political action. Political pressure may be necessary to ensure that even court decisions are carried out. But there are some possibilities for drafting a constitution with more in-built mechanisms to ensure that it is implemented. The expression “according to law” should be viewed with the greatest scepticism: its effect is usually to make rights dependent on laws that may never be passed. As far as possible, courts should be able to enforce important rights without waiting for new laws. A Constitution might even give the courts power to draft directives with the force of law – if within a reasonable time government does not do so. The Constitution might create special mechanisms such as an independent commission for a period of perhaps 5 years to monitor
The Dalits of Nepal and a New Constitution 43 implementation, to give publicity to successes or failure in implementation, to make concrete proposal for new laws that are essential, and with the power to go to court to obtains orders that require the authorities (as far as possible) to do what is necessary to implement the Constitution. And the people can be given broad rights to approach effective institutions, including the courts, and bodies like the Human Rights Commission. It is probably clear that the question posed at the beginning of this section is, frankly “No”. A Constitution, however good it is, will require genuinely effective and independent bodies (particularly courts and commissions) to ensure that is carried out. Even if the Constitution says “a body must be appointed” someone must appoint it – and only the courts could issue a legally binding order that this is done. And the people too must take initiatives to enforce their rights – and the rights of others. Constitutions can be important. They may be important because they obstruct effective rights. But they can also give rights that are genuinely of value. But they will not have any effect if they remain on the paper. The rights must come alive because people insist on their rights being fulfilled – by political and by legal action. Civil servants must be trained to respect rights. Groups that have been discriminated against in the past must insist on being treated with respect. Genuine liberation for the Dalit community will be a revolution, in which the Constitution plays a part – important, but still only a part.
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